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dent Benjamin's hand, and therefore the bill ought not to have been dismissed, but the respondents ought to have been decreed to perform the said agreement; and the rather, because they themselves once thought, that they were bound in conscience to permit the appellant to enjoy his mother's third part of the estate, without any consideration; upon a presumption, that the testator intended, in case of failure of issue of his son's body, his estate should go to his three daughters, as tenants in common; and it could not well he doubted, but that he would have expressly devised it so, had he been well advised at the time of making his will.

On the other side it was insisted (R. Raymond, T. Lutwyche), that it did not appear in the cause, that any treaty or proposal made by the respondent Benjamin was ever carried into an agreement, or so much as accepted of or acquiesced in, either by the appellant's father or himself, after he came of age. That it was the nature of all agreements to be mutual and reciprocal, so as that each party might be [186] equally bound to a performance; but as this pretended agreement was defective in that circumstance, a Court of Equity ought not to carry it into execution. And that the respondent Mary, whose freehold it was, was neither privy or consenting to the contents of the letters read against her, nor did she ever consent to any agreement for the sale or disposal of her estate; but in her answer positively declared against it, and insisted on her right, of which by law she could not be divested, but by her own free consent signified by her when examined, and by a fine levied in consequence of such consent.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the decree of dismission therein complained of, affirmed: and it was further ordered, that the appellant should pay to the respondents, the sum of £50 for their costs, in respect of the said appeal. (Jour. vol. 21, p. 690.)

The appellant Walter Byrne, being seised in fee of several houses in Dublin, and of several lands in the county of Wicklow, and particularly of three fourth parts of the lands of Killmacurra, and Knockattin, as tenant in common with the Earl of Ross, who was entitled to the other undivided fourth part thereof; did, in his minority, marry Clare, the daughter of Christopher Mapas, esq. but being then incapable of making any settlement of his estate, by reason of his infancy, no provision, by way of jointure, could be made for the wife; and therefore her father would not give, or secure to her any marriage-portion, nor was she otherwise entitled to any.

However, after the appellant Walter had attained his age of twenty-one, the wife's father agreed to charge his estate with the payment of £800 as her marriage portion; in consideration, that Walter would make a settlement of his estate upon the issue of the marriage, and secure a jointure for his wife; and thereupon, by indentures of lease and release, dated the 20th and 21st of March 1703, the appellant Walter conveyed all his estate to certain trustees and their heirs, to the use of himself for life; remainder to the trustees, to preserve the contingent remainders; remainder to the first and other sons of that marriage, in tail male; remainder to the appellant John Byrne, in tail male; with remainders over to several other branches of the family: and he charged [187] the estate with £200 per ann. rent-charge, as a jointure for the said Clare; and it was thereby provided,

That it should be lawful for the said Walter Byrne, during his life, to make leases of any part of the premises in the county of Wicklow, for any term, not exceeding